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Respect@Work: Practical steps to comply with the positive duty

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The term ‘positive duty’ has become a common phrase in most workplaces.  But many organisations are still grappling with the concept of a positive duty and what proactive actions they can (and must) take to prevent sexual harassment and related unlawful conduct in the workplace.  Aside from the obvious benefits of having a workplace free from sexual harassment, organisations will soon face an added compliance overlay in the form of the Australian Human Rights Commission’s new powers to enforce compliance with the positive duty which take effect from 12 December 2023.

Against this backdrop the AHRC has recently released its Guidelines for Complying with the Positive Duty Under the Sex Discrimination Act 1984 (Cth) (Guidelines).  The Guidelines provide practical examples of how organisations of all sizes can comply with their positive duty as well as what records can be kept as evidence of compliance. The Guidelines are not legally binding, but they will be a key reference point for the AHRC (and potentially the courts) to determine if an organisation has complied with the positive duty.

The Guidelines introduce four guiding principles that underpin the practical examples of how the positive duty can be met. The guiding principles are:

  • Consultation: organisations must talk to and consult with workers about what workers need and want to feel safe and respected in the workplace. Organisations must take the views of all workers, including marginalised and unrepresented groups, into consideration. This emphasis on consultation ties in closely with parallel obligations under work, health and safety law.
  • Gender equality: organisations must aim to achieve gender equality in their workplace. Gender inequality is a well-recognised risk factor for sexual harassment and related behaviours.
  • Intersectionality: organisations must recognise that individuals have different experiences and identities that interact with and shape their relationships and social experiences.
  • Person-centred & trauma informed response: organisations must apply these complementary approaches when addressing unlawful conduct in their workplace.

The Guidelines adopt the seven key domains for prevention and response that were developed as part of the Respect@Work report, but build on these by providing examples of how each domain can be applied in an organisation which is small (fewer than 20 workers), medium (between 20 and 199 workers) or large (200 or more workers). The expectation is that larger organisations, which have more resources, must do more to prevent unlawful conduct in their workplace.

The seven domains are:

The Guidelines, coupled with the good practice indicators published by the Respect@Work Council, provide organisations with a sophisticated roadmap for achieving compliance. Now is the time for organisations to self-assess the effectiveness of existing frameworks and identify any key compliance gaps.

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